April 12, 2012

DOJ Asks Judge to Keep Documents Secret in Detention Dispute

The Justice Department yesterday asked a federal judge in Washington to block the release of internal legal documents that a U.S. citizen detained in Yemen said he wants to review for his defense in a case there.

DOJ lawyers said the Office of Legal Counsel documents that the citizen, Sharif Mobley, wants to see, are classified and cannot be publicly disclosed. The government also maintains that attorney-client and other privileges should apply to keep the information secret.

Mobley’s suit in U.S. District Court for the District of Columbia gained some traction in February when U.S. District Judge Beryl Howell refused the government's request to dismiss the litigation. Mobley's lawyers contend the Justice Department in unlawfully holding onto internal documents that could pertain to his arrest and detention in Yemen.

Mobley claims the U.S. government played a role in his arrest in Yemen, where he remains detained and pending trial. He wants to review that information to defend against a murder allegation.

Seven of the documents at issue are communications between OLC and “Executive Branch clients for the purpose of providing legal advice regarding a national security matter,” according to DOJ court papers filed Wednesday. OLC provides advice to the president and to executive branch agencies.

DOJ attorney Judson Littleton of the Civil Division said in court papers (PDF) that the information in the documents are “highly sensitive national security information” and are marked as classified.

“OLC’s response to the request in this case was proper and fully consistent with its obligations under FOIA,” Littleton said.

The circumstances of the case, he said, make it impossible to submit public declarations “establishing the current and proper classification of these records, because any such declaration itself would be classified.”

The government, Littleton said, submitted to the trial judge a secret filing to satisfy the Justice Department’s “burden of demonstrating that the records were properly” withheld from public disclosure.

Littleton said the Office of Legal Counsel is not an “original classification authority.” But when OLC receives classified information, DOJ lawyers said, the agency “marks and treats that information as derivatively classified.”

DOJ lawyers said the documents in the Mobley case either arrived at OLC as classified or contained information that another agency deemed classified.

John Bies, a deputy assistant attorney general in the Office of Legal Counsel, said in a declaration filed Wednesday that the documents remain classified to this day, according to his conversations with other agencies.

Bies did not identify the other DOJ components or agencies with whom he spoke.

An attorney for Mobley, Kel McClanahan of Arlington’s National Security Counselors, said in an interview that the Justice Department is attempting to maintain a litigation advantage by not describing the documents it has that are responsive to his client's records request.

"The Justice Department and whoever it has been coordinating with--these mysterious other agencies the department won't identify--are making the argument that number of pages is classified, the dates are classified," McClanahan said. "That every single piece of information is classified."

McClanahan said DOJ has "stonewalled and thrown up every kind of delay they can come up with. They still are hiding behind the documents' classified status to withhold information that no one could say was sufficiently classified."

DOJ also contends the records are also protected from release by civil litigation privileges that include deliberative process and attorney-client. OLC, Littleton said, is often called on to provide advice about “very difficult and unsettled issues of law.” Confidentiality, then, is crucial, he said.

“It is thus particularly important that OLC’s clients be able to count on the continued confidentiality of their predecisional, deliberative communications with OLC when seeking legal advice regarding some of their most sensitive and important decisions,” Littleton said.